Plaintiff UCI brought this action in diversity seeking to
recover amounts allegedly due and owing under the Agreement. UCI
alleges that it is a proper party plaintiff because it is an
intended third-party beneficiary of the Agreement, or
alternatively, because UCIM assigned all rights to payment under
the Agreement to UCI.*fn2 UCI further alleges that all
collection efforts with respect to the alleged delinquent
accounts (i.e., telephone calls and correspondence) were made by
UCI from its office in White Plains, New York.

DISCUSSION

I. Personal Jurisdiction

Plaintiff bears the burden of establishing this Court's
jurisdiction over the defendant. See Metropolitan Life Ins. Co.
v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). The
nature of the plaintiff's obligation, however, "varies depending
on the procedural posture of the litigation." Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990). Prior to discovery, a motion to dismiss pursuant to Rule
12(b)(2) may be defeated if the plaintiff's complaint and
affidavits contain sufficient allegations to establish a prima
facie showing of jurisdiction. See id. Moreover, the court must
assume the truth of the plaintiff's factual allegations. See
id.

In diversity actions, the extent of the Court's personal
jurisdiction is governed by New York law, as circumscribed by the
Due Process Clause of the United States Constitution. See,
Metropolitan Life Ins., 84 F.3d at 567; Arrowsmith v. United
Press Int'l, 320 F.2d 219, 223 (2d Cir. 1963). UCI asserts
jurisdiction over VNA on the basis of § 302(a)(1) of New York's
Long Arm Statute. N.Y.C.P.L.R. § 302(a)(1). This section provides
that "a court may exercise personal jurisdiction over any
non-domiciliary . . . who in person or through an agent transacts
any business within the state," and the cause of action arises
therefrom. As interpreted by the New York Court of Appeals, the
exercise of jurisdiction under this provision will comport with
the due process guarantees only if "`the defendant purposefully
avails itself of the privilege of conducting activities within
[New York], thus invoking the benefits and protections of its
laws.'" McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377,
382, 229 N.E.2d 604, 607, 283 N.Y.S.2d 34, 38 (1967) (quoting
Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d
1283 (1958)); accord Cut-Co Indus., Inc. v. Naughton,
806 F.2d 361, 365 (2d Cir. 1986).

Applying those factors, it is clear that VNA did not transact
business in New York. The Agreement was negotiated by VNA and
UCIM in Massachusetts. VNA executed the contract in
Massachusetts.*fn3 At no time was a representative of VNA
physically present in New York. Further, the Agreement contains a
choice-law-clause that provides: "XVIII. APPLICABLE LAW: This
Agreement shall be governed by and construed under the laws of
the Commonwealth of Massachusetts." All services to be rendered
by UCIM were to be rendered in Massachusetts by employees of
UCIM. VNA is obligated, under the terms of the Agreement, to
render payment to UCIM upon receipt of invoices which UCIM is to
provide on a weekly basis. Nothing in the Agreement contractually
obligates VNA to remit its payments to UCI in New York. Indeed,
there is absolutely no mention of UCI in the Agreement.
Certainly, the Agreement does not contemplate any form of
on-going contractual relationship between VNA and a New York
corporation (i.e., UCI).

Plaintiff contends that VNA transacted business in New York by
virtue of the following: (1) VNA mailed payments due under the
Agreement to UCI in New York; (2) VNA made promises to pay
outstanding balances while speaking by telephone with UCI
employees who were located in New York; and (3) as a result of
these contacts, VNA was aware that it was engaged in an on-going
business relationship with a New York corporation.

Assuming the truth of all such jurisdictional averments,
defendant's conduct does not constitute the transaction of
business in New York within the meaning of C.P.L.R. § 302(a)(1).
The consensual (but not contractually required) mailing of
payments to UCI in New York, standing alone, does not convey
jurisdiction over VNA. See, e.g., Roper Starch Worldwide, Inc.
v. Reymer & Assoc., Inc., 2 F. Supp.2d 470, 475 (S.D.N.Y. 1998)
("merely sending payment to New York is not sufficient to
establish personal jurisdiction over a defendant"); Continental
Field Service Corp. v. ITEC Intern., Inc., 894 F. Supp. 151, 154
(S.D.N.Y. 1995) ("this passive accommodation does not establish
the requisite purposeful activity to justify jurisdiction");
Colson Services Corp. v. Bank of Baltimore, 712 F. Supp. 28, 31
(S.D.N.Y. 1989) (wiring of funds to New York at plaintiff's
request is insufficient to establish jurisdiction).

The Court is authorized to transfer a case to a district where
venue is proper, notwithstanding its lack of personal
jurisdiction over the defendant. See Corke v. Sameiet M.S. Song
of Norway, 572 F.2d 77, 78-80 (2d Cir. 1978) (citing Goldlawr,
Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39
(1962)). Further, "when transferring a case in the interest of
justice based on the lack of personal jurisdiction, a court need
not elect between reliance on 28 U.S.C. § 1404(a) and § 1406(a)."
Worldwide Futgol Assoc., 983 F. Supp. at 182; see Corke, 572
F.2d at 80; Troyer v. Karcagi, 488 F. Supp. 1200, 1206-07
(S.D.N.Y. 1980) ("taken together the statutes confer authority to
transfer the suit whether or not venue is properly laid in [the
transferor] district").

Plaintiff asserts that "[a]ll the records necessary to this
action are located in White Plains, and plaintiff's witnesses . .
. are located here," arguing by implication that transferring the
case to the Massachusetts forum would be inconvenient to the
parties and witness and, therefore, not in the interest of
justice. (Phillips Aff. ¶ 8). This argument is unpersuasive,
however, because: (1) the alternative is outright dismissal of
the action; (2) plaintiff requested the transfer in lieu of
dismissal; and (3) the lack of personal jurisdiction over VNA
justifies the transfer of this action to the District of
Massachusetts.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.